Blood donation is a lifesaving voluntary act which is used to overcome several medical scenarios, from minor to major, including life-threatening situations. Donors usually give blood when some family member or friend requires it for direct donation however, several donors donate for charitable reasons. Despite the generosity of the act, certain groups of people, including gay and transgender persons are restricted or completely banned from donating blood in various countries, including India.
In India, gay and transgender persons and female sex workers are prohibited from donating blood. The said unspoken-of prohibition was imposed unofficially since the HIV / AIDS epidemic in early 1980s. Since then, there is a stigma and misplaced stereotype associated with gay and transgender persons that they are high-risk and carriers of HIV / AIDS. Such persons are unfortunately considered to be promiscuous, having multiple sexual partners and engaging in unsafe intercourse. In October 2017, the National Blood Transfusion Council (NTBC) and the National Aids Control Organization (NACO) under the Ministry of Health and Family Welfare, Government of India issued the ‘Guidelines for Blood Donor Selection and Blood Donor Referral’ officially imposing the prohibition.
Clause 12 of the Guidelines states that a donor shall be free from any disease transmissible by blood transfusion and shall not be person considered “at risk” for HIV, Hepatitis B or C infections, which includes gay men, transgender persons and female sex workers. Clause 51 of the Guidelines states that such persons are permanently deferred from donating blood or plasma. The prohibition under the Guidelines is based on such persons being at risk for transmission of sexually transmitted diseases (STDs) through blood donation and a possibility of blood safety being compromised.
A similar prohibition existed in several other countries around the world however, with the advancement in medical technology and screening processes to minimize the risk of transmission of STDs, the prohibition has been re-evaluated. Indefinite blanket deferrals perpetuate discrimination and are not countenanced by scientific evidence. Scientific evidence against blood donation by gay and transgender persons does not necessarily warrant a complete prohibition on it. Several countries, which have introduced progress reforms in their regime, have set up an exemplary example for other countries to follow. The re-evaluation has led either to the prohibition being relaxed with the introduction of a ‘deferral period’ or complete removal of even the ‘deferral period’ (time period before donation when the donor cannot be sexually active).
Several countries have now completely lifted the ban, for instance, America, United Kingdom, Canada, Argentina, Brazil, Spain, Italy, Portugal, South Africa, Kenya, Cuba, Mexico, Romania, France, Germany, Hungary, Greece, Ireland, Netherlands, Poland, Russia, Switzerland etc. Other countries have varying deferral periods ranging from 3 months to 12 months, for instance, New Zealand (3 months), Ireland (3 Months), Norway (12 months), Sweden (6 months), Belgium (4 months), Japan (6 months), etc. However, there is an indefinite deferral / ban in countries like India, Pakistan, Afghanistan, China, Iran, Uzbekistan, Thailand, etc.
(Source: https://www.equaldex.com)
The prohibition was neither completely uplifted nor relaxed at the stroke of a pen and it has gradually progressed with time. For instance, in the United States of America, the Food and Drug Administration (FDA) lifted its lifetime ban on donation of blood by gay men in the year 2015 and introduced a deferral period of 12 months, which was further reduced to 3 months in the year 2020, and completely removed in the year 2023. Another commendable example of progress is of the United Kingdom where a deferral period of 1 year was introduced in the year 2011, which was reduced to 3 months in the year 2017, and from 2021 onwards, the same has been completely removed. Rightly said, Rome wasn’t built in a day.
As of 2024, India is yet to see any kind of relaxation in the complete prohibition of blood transfusion by gay men and transgender persons. In February 2021, a Public Interest Petition (PIL) [1] was filed before the Supreme Court of India by Thangjam Santa Singh (a.k.a. Santa Khurai) (a transgender activist from Manipur) seeking striking down of Clauses 12 and 15 of the Guidelines issued in October 2017 as unconstitutional, discriminative and violative of the fundamental rights of equality, dignity and life guaranteed under Articles 14, 15 and 21 of the Constitution of India. The Petition focusses on the continued discrimination against the said group of persons despite the ruling of the Supreme Court of India that discrimination on the ground of sex under Article 15 includes discrimination on the basis of gender identity and sexual orientation of a person [2]. Emphasis has been laid on the lack of any intelligible differentia for such discrimination and further lack of any rational nexus between the objective of the Guidelines i.e., facilitation of safe and sufficient supply of blood with minimal risk of infections for donation, and the exclusion of certain categories of persons as donors. The Supreme Court issued notice on the Petition and the Centre filed its response citing “scientific reasons” for the prohibition. As per the Centre, the testing technology available in India is limited and there exists a window period in which infections are still undetectable because of which even the idea of a deferral period being introduced is unsustainable. The challenge to the constitutionality of the Guidelines is pending before the Supreme Court of India.
The prohibition was imposed in most of the countries due to the outbreak of the HIV / AIDS epidemic in the early 1980s however, with the advancement of medicine and technology and the ever changing mindset of the society, countries are uplifting and / or relaxing the prohibition and removing the discrimination while ensuring blood transfusion safety. India however continues to maintain its complete ban at least till the Supreme Court decides the Petition pending before it. At this stage, what India needs is evolution and advancement in the testing technology to at least be able to introduce a deferral period and gradually reduce it over the years. With the growing awareness about fundamental rights, the change in the mindset of the community at large and the requirement to reduce the stereotypical stigma, there is an emergent need to turn a corner and bridge the gap between the discrimination while balancing blood safety with the principles of equality. However, several persons who belong to the gay and transgender group continue to remain hopeful that someday the prohibition would be relaxed and they, too, while be able to carry out god’s work to donate blood to those in need, whether their own family members and friends or complete strangers.
Thangjam Santa Singh @ Santa Khurai v. Union of India & Others, W.P. (C) No. 275/2021
NALSA v. Union of India, (2014) 5 SS 438; and Navtej Johar v. Union of India, (2018) 10 SCC 1
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